Today, more than ever, our lives are lived online. In some ways, this connectivity is a convenience, but when it comes to family law litigation, our online presence can actually make things more complicated – particularly if a divorcing couple has shared online accounts, or know each other’s passwords. Information found online can potentially influence the division of property, alimony, child support, and/or custody.
When entering into family law litigation, it is a good idea to assume that anything you post on social media or send via email or text may be read aloud in court. Your ex or his/her attorney may be able to access your electronic data and online footprint either informally, or through a formal legal investigative process (known as “discovery”). However, there are some steps you can take to protect yourself and safeguard your online information.
Protecting Yourself From Informal Access: If you are beginning to go through the process of divorce, it is a good idea to un-sync any shared devices, stop using a shared computer (if you and your spouse are still living together), and stop sharing your electronic calendar(s). Block your ex from any social media accounts, and refrain from posting – you never know, a friend in common could pass potentially harmful information along to your ex. Make sure your spouse does not have access to your phone or computer by changing any passwords or security codes. You can even go so far as to change your security questions to something your spouse may not know or be able to guess. This is to prevent improperly obtained information from harming you in court. Say, for example, your spouse answers your security questions and logs into your bank account, only to find out you have been spending large sums of money on gambling. That spouse could potentially hire a private investigator to confirm the gambling, and then that private investigator’s report could be admitted into evidence during the divorce proceedings in court. This is one way improperly accessed information becomes information admissible in court. Changing account names, passwords, and/or security codes can help prevent such fraudulent access.
Protecting Yourself From Formal Access: Many people are unaware that the type of electronic data you would normally want to keep private (ex: bank statements, emails, text messages, social media posts) can be “discoverable” in a divorce case—which means you are required to provide a copy to the other side, or they can obtain a copy from the provider Attorneys can scrutinize the opposing party’s electronic data, looking for crude messages or questionable pictures – anything that could influence the negotiations. During divorce, it is a good idea to stay away from social media altogether, or to set post delays so you have time to reconsider your messages. While you may be tempted to delete electronic data – do not do it! It could be considered “destruction of evidence” (for which there could be consequences in litigation), or, deleting electronic data could create the false appearance of guilt. Also, forensic experts could potentially recover anything you try to delete from your smart phone or laptop.
Make Sure You Have The Information You Need: As you begin the process of divorce, make sure you download information from shared social media, email, or cloud accounts. This is for a couple of reasons. First, you want to preserve anything you would want to share with the court – before your spouse changes the passwords or blocks you from the account. Second, you want to make sure you have a copy of anything you need for your personal records or for enjoyment – just in case you lose access to it later, or your spouse deletes it. (It can be prohibitively expensive to retrieve deleted documents). Third, it is a good idea to download electronic data in case your device runs out of storage or the information is accidentally cleared (ex: some smart phones regularly remove old text messages or photos). In addition to downloading, you can also consider making copies of entire computer, phone, or camera hard drives.
The Benefits Of Electronic Data And Online Communication: While the prevalence of electronic data certainly expands the scale of litigation, it can also provide some benefits in family law cases. In divorces, family photos and children’s artwork have traditionally been hot-button issues, with the cost and hassle of creating duplicates often forcing parties to divide some and only duplicate a favorite few. In the current digital environment, most photos are in an electronic format to begin with, and artwork can be easily scanned and copied/emailed.
Electronic forms of communication can also help high-conflict parties or those with a history of abuse. This type of communication allows the parties to exchange any needed messages or information, while maintaining a degree of separation. Some courts may order the parties to communicate via text or email only, so as to preserve any hostile communication for future litigation, or to discourage that hostility in the first place.
Finally, couples can take advantage of calendars and websites designed specifically for co-parenting, such as Our Family Wizard. These electronic tools help parents to communicate effectively, without getting overwhelmed by complicated schedules or To Do lists.
The sharing of electronic data can be a sensitive issue; however, these few steps can aid in minimizing the negative risks of online activity in litigation and maximize the benefits of digital data and communication tools. For more about electronic data and how it could potentially affect your family law case, call Porchlight at (678) 435-9069 or contact us here.